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President v. Jenkins2/6/2003
80 So. 2d 170 (Fla. Dist. Ct. App. 2001); accord, Benjamin J. Vernia, Annotation, 98 A.L.R.5th 533 (2002).
Here, however, Jenkins is not a hospital employee but merely a physician with admitting privileges. Moreover, there is no claim that St. Barnabas knew his insurance had been canceled and, to the contrary, was assured otherwise by the doctor. Most significant, however, unlike Florida, New Jersey imposes no statutory duty on the hospital to assure its physicians, much less those only with admitting privileges, have malpractice insurance.
Recognizing that no such duty exists under the common law either, plaintiff nevertheless seeks to come under the umbrella of those cases finding corporate negligence in the selection or retention of unqualified physicians, arguing that physicians without insurance are "incompetent." This argument is unpersuasive. We discern no reasonable correlation between a physician who does not carry malpractice insurance and his or her professional competency. Although some doctors may be unable to obtain coverage because of past malpractice, for purposes of determining the existence of a duty, a major consideration of which is the foreseeability of harm, Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999), we see no greater risk of injury to the patient created by a physician who, as here, has allowed a short-term gap in his insurance coverage and, because of that lapse, has become non-compliant with the hospital's internal rules.
In determining whether such a duty exists, we have also considered (1) the attenuated relationship between the hospital and physicians with mere admitting privileges; (2) the nature of the attendant risk which, as noted, seems minimal inasmuch as a deficiency in professional liability insurance has little, if anything, to do with professional competence; (3) the opportunity and ability of St. Barnabas to patrol enforcement of its regulations, which presumably would be both burdensome and cost-prohibitive; and (4) "the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, supra, 132 N.J. at 439. After weighing and balancing these several factors, we soundly reject the invitation to extend the common law to encompass a duty as formulated by plaintiff. Neither fairness nor policy dictates judicial imposition of such a duty. Rather, we leave such a determination to the legislative or executive branches of government.
Therefore, we affirm the denial of plaintiff's motion for leave to amend her pleadings to include a count of negligence against St. Barnabas on this novel theory of liability. We also affirm the grant of summary judgment in favor of Zurich declaring no coverage, and in favor of C&R;and Princeton, finding no liability as a matter of law.
Affirmed.
LANDAU, J.A.D., retired and temporarily assigned on recall, dissenting and concurring.
Respectfully, I write to dissent in part from the majority opinion and to enter a concurrence with a portion of that opinion. Except for the differences noted below, I am in agreement with my colleagues.
I concur with the majority's affirmance of the grant of summary judgment in favor of Princeton Insurance Company (Princeton) against Deborah and Perry President. In granting that judgment, the motion judge pointed out that the Presidents did not avail themselves of his previously tendered opportunity to amend their complaint against Princeton to include a count for declaratory relief respecting the effectiveness of its cancellation of Dr. Jenkins' policy by a notice dated after the alleged malpractice incident, but retroactive to a date preceding the incident. My concurrence is based on that rea
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